Firstly, the term ‘patent troll’, as a pejorative, was largely promoted by big, wealthy corporations ‘outraged’ by the assertion of patents by individual inventors, small businesses, and ‘non-practicing entities’ (NPE’s) which did not actually have competing products in the marketplace. The problem with such patent-holders, from the perspective of the big corporation, is that they cannot be ‘bought off’ with cross-licensing deals based on the corporation’s large patent portfolio. Credit for popularising the term ‘patent troll’, at least in its current form, is widely attributed to Peter Detkin in around 2001, when he was General Counsel at Intel, which was defending a patent infringement suit brought by TechSearch LLC. Apparently ‘extortionist’ was libellous, whereas ‘troll’ was just a little bit cute! Intel’s position remains that pretty much any NPE (including Universities and public research institutes) is fair game to receive the epithet ‘troll’, unless they play by Intel’s rules.
Our second reason for reluctance in applying the term ‘troll’ is that we believe there is a legitimate place in the patent system for patent holding companies. It is self-evident that individual inventors and small entities will often not have access to the capital necessary to commercialise their inventions, or to assert their patents against infringers. The fact that there are companies willing and able to acquire intellectual property from these minor players provides a financial incentive for small entities to pursue innovative ideas, and to protect them via the patent system, even though they do not necessarily have the resources to take them to the next stage themselves.
This does not mean, however, that some NPE’s are not worthy of the name ‘troll’. In our view, VS Technologies, LLC, which filed suit against Twitter, Inc on 18 January 2011, is a patent troll, pure-and-simple!
TROLLS – YOU KNOW THEM WHEN YOU SEE THEM!Patent trolls are hard to define, but each of us has our standards, and we know one when we see it! Here are a few of Patentology’s tell-tale signs of potential trollism:
- the inventor is also the patent attorney of record at the USPTO;
- the plaintiff is a company only recently formed, and/or which only recently acquired the patent prior to the commencement of litigation;
- the plaintiff’s complaint is expressed in vague and general terms, and fails to establish any concrete cause of action by reference to actual wording of the patent claims, and/or specific allegedly infringing activities of the defendant.
The assignment to VS Technologies, LLC was executed on 30 September 2010, and recorded with the USPTO on 6 December 2010.
Finally, the complaint makes statements no more specific than:
As it pertains to this lawsuit, very generally speaking, the '309 Patent discloses methods and systems for creating interactive, virtual communities of people in various fields of endeavor wherein each community member has an interactive, personal profile containing information about that member.
More specifically, on information and belief, Defendant TWITTER, without authority, consent, right or license, and in direct infringement of the ‘309 Patent, manufactures, has manufactured, makes, has made, uses, has used, sells, has sold, offers for sale, has offered for sale, distributes and/or has distributed, systems, products, and/or services infringing one or more claims of the ‘309 Patent, including its website http://www.twitter.com/ which creates and makes publicly available, interactive, virtual communities and profiles of people in various fields of endeavor.
IS TWITTER IN TROUBLE?Unless you have been living in a cave for the past few years, you will know what Twitter does, and would most likely agree that this includes facilitating ‘interactive, virtual communities and profiles of people in various fields of endeavor.’ So does Twitter infringe the ‘309 Patent, as VS Technologies contends?
Well, no, we think probably not. Here is the actual claim 1 from the Patent:
1. A method of creating an interactive virtual community of people in a field of endeavor, comprising the steps of:Certainly Twitter allows users to create and interact with their personal profiles on the site. And most members would probably consider themselves to be involved in some ‘field of endeavor’ that is in some way reflected in their profile (e.g. IP law, such as Patentology, or entertainment, such as Ashton Kutcher). But we cannot see how Twitter performs any of the claimed steps (a) to (c). And since it does not ‘select a member’ in accordance with step (c), Twitter cannot be performing steps (d) to (g) in relation to a ‘selected member’.
- a) selecting a field of endeavor;
- b) compiling a list of members in the selected field;
- c) selecting a member from the compiled list of members based on a preselected factor;
- d) obtaining biographical information about the selected member;
- e) processing the biographical information in a preselected format to create a personal profile of the selected member;
- f) publishing the profile of the selected member on a machine readable media; and
- g) allowing the selected member to interact with the profile.
To put it bluntly, any member can do whatever they wish on Twitter, at any time. They do not have to wait for their particular ‘field of endeavor’, or themselves, to be ‘selected’ for the privilege!
Of course, US patent law is a complex beast, and we are not qualified or registered to advise anyone on its application. So we could be completely wrong about all this.
But we do not think so, and we would suggest that it is these kinds of frivolous and vexatious law suits that tend to give all patentees, and especially NPE’s, a bad name.